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2008 DIGILAW 1280 (PAT)

Saroj Devi v. Shanti Mishra

2008-09-01

MIHIR KUMAR JHA

body2008
Judgment 1. Heard counsel for the petitioner. 2. In the opinion of this Court the impugned order does not suffer from any jurisdictional error, inasmuch as Smt. Shanti Mishra a daughter of the propounder to the Will whether natural or adopted has definitely a right to be heard as with regard to a probate proceeding concerning the Will of her father. To that extent the petitioners objection to impleadment of Shanti Mishra is in teeth of the provisions of Section 283 of the Indian Succession Act. 3. The grievance of the petitioner that Shanti Mishra ceased to be daughter of late Bhagwath Nath Mishra after her being adopted by one late Kamal Nath Tiwari and therefore, not competent to contest the probate proceeding, in the opinion of this Court is rather premature and in fact the court below has rightly proceeded to hold that this issue would be gone into at the time of final disposal of the probate proceeding. 4. Counsel for the petitioner fairly submits that there is no registered deed for adoption of Shanti Mishra and in that view of the matter, there can also be no presumption of adoption in terms of Section 16 of the Hindu Adoption and Maintenance Act. 5. Mr. Sandeep Kumar, learned counsel appearing on behalf of the opposite party, has submitted that the law that any person showing even a bit of concern in the property bequeathed under the Will will have a right to be heard in the purported exercise of Section 283 is by now well settled. He has in this context referred to the judgment of Calcutta High Court in the case of Parimal Kumar Das & Ors. vs. Prasun Kumar Das, reported in (2004)1 Cal.LT 621, and a Division Bench of Delhi High Court in the case of M/s Indian Associates vs. Shivendra Bahadur Singh & Ors., reported in AIR 2003 Delhi 292. 6. In the opinion of this Court the submissions made by the learned counsel for the opposite party is in keeping with the wordings of Section 283(1)(C) which reads as follows: "283. Powers of District Judge (1) In all the District Judge or the District Delegate may, if he thinks proper, (a) ......... (b) ......... 6. In the opinion of this Court the submissions made by the learned counsel for the opposite party is in keeping with the wordings of Section 283(1)(C) which reads as follows: "283. Powers of District Judge (1) In all the District Judge or the District Delegate may, if he thinks proper, (a) ......... (b) ......... (c) issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before grant of probate or Letters of Administration." 7. From the aforementioned provisions and the expression used "claiming to have any interest in the estate of the deceased" is wide enough to include the person have slight and bare possibility of an interest to oppose a testamentary proceeding. This aspect of the matter was gone into by this Court in the case of Matukdhari Singh vs. Smt. Prem Debi & Ors., reported in AIR 1959 Pat. 570 , wherein it was held that true meaning of expression interest in the estate of the deceased occurring in Section 283(1)(c) of the Act is that an interest however slight or bare possibility of the interest or even an interest dependent upon remote contingencies is sufficient to entitle a person to oppose the Will and to intervene in the matter of the application for probate and Letters of Administration and to call upon the propounder of the Will to prove it in solemn form in his presence, and such a person has a proper locus standi to come into court and ask that the probate or the grant of Letters of Administration be revoked. Following the aforesaid Patna view even the Delhi High Court in the case of M/s Indian Associates and Calcutta High Court in the case of Parimal Kumar Das (supra) have also taken the same view as with regard to scope of Section 283 of Indian Succession Act. 8. As noted above, the Will in question for which the probate proceedings was filed by the petitioner Saroj Devi claiming to be the sole beneficiary under the Will was executed by Late Bhagwat Nath Tiwari. 8. As noted above, the Will in question for which the probate proceedings was filed by the petitioner Saroj Devi claiming to be the sole beneficiary under the Will was executed by Late Bhagwat Nath Tiwari. The case of the petitioner that as a matter of fact Smt. Shanti Mishra, the intervener, was definitely borne as a daughter of Late Bhagwat Nath Tiwari but had lost her status after being adopted as a daughter by Kamal Nath Tiwari and thus would have no right to contest the probate proceedings is premature because in the event the Will is not probated, the intervener Shanti Mishra will definitely be entitled to claim a right in the property of Bhagwat Nath Tiwari. As stated above, there is no registered Will in favour of adoption of Shanti Devi by Kamal Nath Tiwari and as such, the plea of the petitioner that Shanti Devi was adopted as a daughter by Kamal Nath Tiwari is to be decided by any court when an issue to this effect would be raised but if Shanti Mishra has come out before the court claiming herself to be the daughter of Bhagwat Nath Tiwari, the same cannot be brushed aside, especially when even the petitioner has admitted that initially both Saroj Devi and Shanti Mishra were borne as natural daughters to Bhagwat Nath Tiwari. It is this aspect of the matter which has been gone into by the court below while allowing the prayer of Smt. Shanti Mishra, the opposite party and the reasoning given by the court below that the claim of her adoption will be examined in course of hearing of the probate proceedings but that cannot be a ground for altogether refusal of her impleadment as a party in the probate proceedings, does not suffer from any jurisdictional error. 9. That being so, this Court would not find any merit in this application. It is, accordingly, dismissed.